Sherman
v. Community Consolidated School District 21 of Wheeling Township (1992)

United States Court of
Appeals, 7th Circuit, upholds the constitutionality of the phrase "one
nation under God" in the Pledge of Allegiance:

"Objection by
the few does not reduce to silence the many who want to pledge
allegiance to the flag 'and to the Republic for which it stands'."

"...'a page
of history is worth a volume of logic.' [....] (Holmes, J.). Unless
we are to treat the founders of the United States as unable to understand their
handiwork (or, worse, hypocrites about it), we must ask whether those present at
the creation deemed ceremonial invocations of God as 'establishment.' They
did not." 980 F.2d at 445.

SHERMAN V. COMMUNITY
CONSOLIDATED

SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP

980 F.2d 437 (7th
Cir. 1992)

No. 91-1684.

United States Court
of Appeals,

Seventh Circuit.

Argued Jan. 24,
1992.

Decided Nov. 20,
1992.

[* * * * *]

Before
CUMMINGS, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK,
Circuit Judge.

"[N]o
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein." West Virginia State Board of
Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed.
1628 (1943). A state therefore may not compel any person to recite the
Pledge of Allegiance to the flag. On similiar grounds, Wooley v.
Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), adds that a
state may not compel any person to display its slogan. Does it follow that
a pupil who objects to the content of the Pledge may prevent teachers and other
pupils from reciting it in his presence? We conclude that schools
may lead the Pledge of Allegiance daily, so long as pupils are free not to
participate.

I

In
1979 Illinois enacted this statute: "The Pledge of Allegiance shall be
recited each school day by pupils in elementary educational institutions
supported or maintained in whole or in part by public funds."
Ill.Rev.Stat. ch. 122 [paragraph] 27-3. We held in Palmer v. Board of
Education, 603 F.2d 1271 (7th Cir. 1979), that states may require teachers
to lead the Pledge and otherwise communicate patriotic values to their
students. The right of the school board to decide what the pupils are
taught implies a corresponding right to require teachers to act
accordingly. See also Webster v. New Lenox School District, 917
F.2d 1004 (7th Cir. 1990). Richard Sherman, who attends elementary school
in Wheeling Township, Illinois, and his father Robert challenge the premise of Palmer
that schools may employ a curriculum including the Pledge of Allegiance among
its exercises. Since 1954 the Pledge has included the words "under
God," 68 Stat. 249, which the Shermans contend violates the establishment
and free exercise clauses of the first amendment. The full Pledge is:
"I pledge allegiance to the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God, indivisible, with
liberty and justice for all." 36 U.S.C. [section] 172.

The
district court's first opinion, 714 F.Supp. 932 (N.D.Ill. 1989), concluded that
the Shermans have standing to challenge the recitation of the Pledge but
expressed doubt that a third plaintiff--the Society of Separationists, Inc., a
group of atheists of which Sherman pere is president--is entitled to
litigate. The court denied defendants' motion to dismiss but invited
plaintiffs to amend their complaint.

Following
the amendment, the court dismissed the Society as a party. 745 F.Supp.
1371 (1990). The Society has not appealed, so we do not mention it
again. The new complaint added the Attorney General of Illinois as a
defendant. The Attorney General reiterated the contention that the
Shermans lack standing; the court disagreed. The Attorney General also
contended that the district court should abstain and that the challenge is
unripe because Richard has not been penalized for his refusal to recite the
Pledge. The court rejected both arguments. It did not address the
Attorney General's submission that the eleventh amendment bars a suit against
that office (the Shermans did not name the incumbent as a party in his personal
capacity).

A third
opinion, 758 F.Supp. 1244 (1991), granted the defendants' motions for summary
judgment. The court held that the state's pledge law satisfies all three
elements of the approach to the establishment clause in Lemon v. Kurtzman,
403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971): it has a secular purpose,
does not advance religion, and does not entangle the government in
religion. Coerced readings of the Pledge would pose difficulties
under the free speech and free exercise clauses, but the court concluded that
the statute is not coercive as written or in application. Although
[paragraph] 27-3 says that the Pledge "shall be recited each school day by
pupils", it does not say by all pupils, and the absence of any
penalty implies that the pupils are entitled to keep silent.
Affidavits from the superintendent of schools, the principal of Richard's
school, and Richard's first grade teacher all stated that no pupil was compelled
to recite the Pledge, to stand during the Pledge or place his hand over his
heart, or to leave if he would not join in, and that no one was penalized in any
way for remaining silent and seated. Contrast Lipp v. Morris, 579
F.2d 834 (3d Cir. 1978) (an obligation to stand at attention while other
students recite the Pledge is forbidden compulsion); Goetz v. Ansell,
477 F.2d 636 (2d Cir. 1973) (same). Any peer pressure to conform that
Richard may have experienced, the court believed, does not justify silencing
pupils who are willing to recite the Pledge.

II

Defendants
renew their jurisdictional arguments. The Shermans disdained to address
them, asserting that only defendants who file cross-appeals may contest the
jurisdiction of the district court. The Shermans overlook the enduring
principle that judges must consider jurisdiction as the first order of business,
and that parties must help the courts do so. Philbrook v. Glodgett,
421 U.S. 707, 720-22, 95 S.Ct. 1893, 1901-02, 44 L.Ed.2d 525 (1975); Fusari
v. Steinberg, 419 U.S. 379, 387 n. 12, 95 S.Ct. 533, 538 n. 12, 42 L.Ed.2d
521 (1975); id. at 390-91, 95 S.Ct. at 539-40 (Burger, C.J.,
concurring). Nothing can justify adjudication of a suit in which the
plaintiff lacks standing or there is some other obstacle to justiciability.
Defendants fulfilled their duties to the court, while the lawyer representing
the plaintiffs slighted his.

The
eleventh amendment deprives federal courts of jurisdiction to consider most
suits against states. State agencies or officials sued in their official
capacity are "the state" for this purpose, Will v. Michigan
Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989); Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d
114 (1985), unless the plaintiff satisfies the requirements of Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See also Hafer
v. Melo, ____ U.S. ____, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
Plaintiffs sued the Attorney General of Illinois in his official capacity only,
seeking both damages and a declaratory judgment that [paragraph] 27-3 violates
the Constitution. The eleventh amendment cleanly bars the award of damages
in an official-capacity suit. Whether it also bars declaratory relief
depends on the theory of liability. Plaintiffs have not articulated any
theory under which Ex parte Young supports a suit against the Attorney
General, who has never threatened the Shermans with prosecution and as far as we
can tell has no authority to do so. (States' Attorneys, elected in each
county, are the public prosecutors in Illinois. Paragraph 27-3 does not
prescribe a penalty, so these officials also have nothing to do with the
subject.) Plaintiffs apparently named the office of the Attorney General
in an effort to obtain a judgment binding the State of Illinois as an entity, a
step that Congress did not authorize when enacting 42 U.S.C. [section] 1983 and
that the eleventh amendment does not permit in the absence of such
authorization. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct.
2666, 49 L.Ed.2d 614 (1976). The Attorney General must be dismissed as a
party.

Defendants'
other jurisdictional objections have less punch. Richard Sherman, obliged
by the school-attendance laws to be present during the Pledge and the potential
object of coercion to participate, has standing to challenge the statute. Abington
School District v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n.
9, 10 L.Ed.2d 844 (1963). His father has derivative standing as his
guardian. The subject is ripe for adjudication. The Pledge law is on
the books, being enforced at Richard's school by daily recitation. That
school officials do not compel Richard to participate may bear on the merits but
does not make the subject less appropriate for decision. Cf. Lee v.
Weisman, ____ U.S. ____, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)
(adjudicating a challenge to a prayer at a high school graduation, with no
Justice doubting justiciability).

Doctrines
that counsel abstention do not imply that the court lacks subject-matter
jurisdiction. The defendants' contention that the district court should
have abstained while awaiting clarification of the meaning of the state's law,
if accepted, would require us to alter its judgment. To obtain such an
alteration, the defendants needed to file appeals of their own. Federal
Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96
S.Ct. 2295, 2302 n. 11, 49 L.Ed.2d 49 (1976). See Robert L. Stern, When
to Cross-Appeal or Cross-Petition--Certainty or Confusion? 87
Harv.L.Rev. 763 (1974).

Now that
the case has reached our court, certification to the Supreme Court of Illinois
would be the best way to find out whether the state's law requires each pupil to
recite the Pledge of Allegiance. Houston v. Hill, 482 U.S. 451,
470-71, 107 S.Ct. 2502, 2514, 96 L.Ed.2d 398 (1987). None of the
parties has asked us to seek the views of the Supreme Court of Illinois.
We could do so on our own, but the reason the district judge gave for not
abstaining is an equally cogent reason for our not certifying: "[P]laintiffs
maintain that having the Pledge led by the principal daily is inherently
coercive and therefore violative of plaintiffs' rights. Thus, even if an
Illinois court interprets the statute to exempt children who cannot say the
Pledge for religious or political reasons, the court would still have to resolve
the question of whether school officials' leading of the Pledge, pursuant to the
statute, results in unconstitutional coercion." 745 F.Supp. at
1374. Circuit Rule 52 permits us to certify a question of state law only
when the answer "will control the outcome" of the case. See also
Rule 20 of the Rules of the Supreme Court of Illinois (certification authorized
when the answer "may be determinative of the said cause").

Although we
could make the state court's answer controlling by first deciding all
of the Shermans' constitutional arguments, leaving only the meaning of state law
unresolved, such a course invites advisory adjudication. Thus the best
course is to interpret the state law for ourselves. We cannot
rewrite a law in order to "save" it, Houston, 482 U.S. at
468-69, 107 S.Ct. at 2513; K-S Pharmacies, Inc. v. American Home Products
Corp., 962 F.2d 728, 730 (7th Cir. 1992); American Booksellers Ass'n v.
Hudnut, 771 F.2d 323, 332-34 (7th Cir. 1985), affirmed without opinion, 475
U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986), but federal courts interpret
state statutes in constitutional cases no less than in cases under the diversity
jurisdiction. Planned Parenthood v. Casey, ____ U.S. ____, ____,
112 S.Ct. 2791, 2822, 120 L.Ed.2d 674 (1992); Frisby v. Schultz, 487
U.S. 474, 483, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988). No
interpretation we announce will bind Illinois or other school districts, see Kucharek
v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990), but it will control how
Wheeling Township must treat Richard, which is all the Shermans are entitled to.

III

If Illinois
requires every pupil to recite the Pledge, then Barnette scuttles the
statute, and we need not consider whether "under God" distinguishes
the Pledge from other patriotic exercises. Plaintiffs contend that
the language of [paragraph] 27-3---"The Pledge of Allegiance shall be
recited each school day by pupils in elementary educational institutions
supported or maintained in whole or in part by public funds."---is
unambiguous and compulsory.

Defendants
persuaded the district court that the lack of a penalty for silence eliminates
any compulsion, or at least shows that the state legislature did not mean to
require children to recite the Pledge. True, there was a penalty
(expulsion from school) in Barnette. Yet other cases dealing with
readings, prayers, or periods of silence in the classroom thought the absence of
a formal penalty irrelevant. E.g., Engel v. Vitale, 370 U.S. 421,
82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Abington School District v. Schempp,
374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Wallace v. Jaffree,
472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Lee v. Weisman, ____
U.S. ____, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Oliver Wendell Holmes
looked to penalties in order to see how the law affected those who regard their
own welfare exclusively. The Path of the Law, 10 Harv.L.Rev. 457,
460-61 (1897), reprinted in Collected Legal Papers 167, 173
(1920). Many people obey laws just because they represent the will of the
majority expressed through democratic forms. See Kurowski v. Krajewski,
848 F.2d 767, 774-75 (7th Cir. 1988). They revere law for the sake of
civility, harmony, and consideration of others--values that schools try to
inculcate. More: penalties may be real (the displeasure of one's teacher
can be formidable) even though not administered by judges. How ironic if
Richard Sherman's first experience with law were to teach him that the legal
sanction expresses the full meaning of a rule. Then the lesson of the
Pledge of Allegiance would be cynicism rather than patriotism. Looking at
the law through the lens of penalties is useful for many purposes, but not when
the task is to teach civic virtue.

What the
law requires of principals, teachers, and pupils depends on the language it
contains rather than the penalties it omits. And what [paragraph] 27-3
says is that the Pledge "shall be recited each school day by pupils"
in public schools. Some pupils? Willing pupils? All
pupils? It does not specify. If it means "all
pupils" then it is blatantly unconstitutional; if it means "willing
pupils" then the most severe constitutional problem dissolves. When
resolving statutory ambiguities, the Supreme Court of Illinois adopts readings
that save rather than destroy state laws. E.g., Country Mutual
Insurance Co. v. Knight, 40 Ill.2d 423, 240 N.E.2d 612 (1968). Given Barnette,
which long predated enactment of this statute, it makes far more sense to
interpolate "by willing pupils" than "by all pupils."
School administrators and teachers satisfy the "shall" requirement by
leading the Pledge and ensuring that at least some pupils recite. Leading
the Pledge is not optional, see Palmer, but participating is.
This makes sense of the statute without imputing a flagrantly unconstitutional
act to the State of Illinois.

This
understanding is consistent with the practice in the Wheeling schools. The
superintendent of schools, the principal of Riley School (which Richard
attends), and his first grade teacher when this suit began, all filed affidavits
stating that neither Richard nor any other pupil is compelled to recite the
Pledge, to place his hand over his heart, to stand, or to leave the room while
others recite. Marilyn Barden, Richard's teacher, averred that she brooks
no hazing of those who decline to participate, and that she has never noticed
any. The only contrary suggestion comes from Robert Sherman's affidavit,
which states: "Defendant Garrett, principal of the school attended by my
son, asks my son to stand with one hand over his heart and participate with the
other pupils in reciting the pledge." But as this affidavit
does not reflect personal knowledge--Robert Sherman does not say that he has
ever been in Richard's class during the recitation or that he has heard
principal Garrett make such a demand--the district court properly disregarded
it. Robert does not even aver that his son told him this, and
Richard did not file an affidavit of his own. Affidavits offered in
opposition to motions for summary judgment "shall be made on personal
knowledge [and] shall set forth such facts as would be admissible in
evidence". Fed.R.Civ.P. 56(e). The same defect prevents giving
force to Robert Sherman's assertion that Richard was hassled by other children
on the playground because of his refusal to recite the Pledge. Children
can be exceedingly cruel to one another, but the rancor (not in any event
attributable to the State of Illinois) must be established by admissible
evidence.

We have not
overlooked some juicy tidbits of legislative history that plaintiffs
proffer. Senator Netsch spoke against the adoption of [paragraph] 27-3,
expressing a belief that the bill could not coexist with Barnette.
Senator Knuppel replied: "it amazes me that these people get up and read
that kind of garbage that Jackson [Justice Robert Jackson, author of the
majority opinion in Barnette] had there, his advise [sic] from the
Supreme Court, I rate just about as highly as I do the advise [sic] from
Congress." Senate Debates, 81st Illinois General Assembly, May 22,
1979, at 272. Senator Lemke then called for the election of federal judges
and added: "Maybe we ought to abolish the Supreme Court and have a
dictatorship like in Russia because in Russia at least they say a pledge of
allegiance to their own flag." Ibid. It is hard to
believe that an elected official of Illinois prefers totalitarian government to
democracy under law just because dictatorships employ more patriotic slogans,
which dictators may deem necessary to their success. That two state
senators are able to bring obloquy upon themselves does not help us know whether
[paragraph] 27-3 means "all pupils" rather than "willing
pupils". Senator Nimrod, the bill's sponsor, treated the recitation
as noncompulsory. Id. at 270-71. Statements on the floor of
the state's lower chamber may be read either way. These unenlightening
exchanges do not show that Illinois enacted a law that would be stillborn under Barnette.

Notwithstanding the lack of penalties or efforts by teachers to induce pupils to
recite, there remains social pressure to do so and a sense of exclusion when
one's beliefs enforce silence during a ceremony others welcome. When
discussing the Pledge of Allegiance, four Justices remarked: "[I]t borders
on sophistry to suggest that the 'reasonable' atheist would not feel less than a
'full membe[r] of the political community' every time his fellow Americans
recited, as part of their expression of patriotism and love for country, a
phrase he believed to be false." Allegheny County v. Pittsburgh
ACLU, 492 U.S. 573, 673, 109 S.Ct. 3086, 3143, 106 L.Ed.2d 472 (1989)
(Kennedy, J., joined by Rehnquist, C.J., and White & Scalia, J.J.).
Concerns of this kind, among others, led Justice Kennedy (this time speaking for
a majority in Lee v. Weisman) to treat prayer during a high school
graduation as a form of compulsion, even though the student may remain silent
without overt penalty. Engel v. Vitale, 370 U.S. at 430-31, 82
S.Ct. at 1267, the first of the school-prayer cases, expressed a similar
conclusion. We have postponed to Part IV discussion of the effect of
"under God". But perhaps the rationale of Barnette,
when joined with the school-prayer cases, equates social pressure with legal
pressure. If as Barnette holds no state may require anyone to
recite the Pledge, and if as the prayer cases hold the recitation by a teacher
or rabbi of unwelcome words is coercion, then the Pledge of Allegiance
becomes unconstitutional under all circumstances, just as no school may read
from a holy scripture at the start of class.

As an
analogy this is sound. As an understanding of the first amendment it is
defective--which was Justice Kennedy's point in Allegheny. The
religion clauses of the first amendment do not establish general rules about
speech or schools; they call for religion to be treated differently.
Recall that for now we are treating the Pledge as a patriotic expression, even
though the objections to public patriotism may be religious (as they were in Barnette).
Patriotism is an effort by the state to promote its own survival, and along the
way to teach those virtues that justify its survival. Public
schools help to transmit those virtues and values. Separation of church
from state does not imply separation of state from state. Schools are
entitled to hold their causes and values out as worthy subjects of approval and
adoption, to persuade even though they cannot compel, and even though those who
resist persuasion may feel at odds with those who embrace the values they are
taught.

Consider
what a general assimilation of religion to patriotism and other values would
mean for the public schools. The majority in Lee remarked, ____
U.S. at ____, 112 S.Ct. at 2657: "By the time they are seniors, high school
students no doubt have been required to attend classes and assemblies and to
complete assignments exposing them to ideas they find distasteful or immoral or
absurd or all of these." They are required to read books promoting
ideas they find wicked. Sometimes their creed may teach that reading such
material is itself sinful. Canon law in the Roman Catholic Church,
and equivalent rules of other religions, restricts the reading of books that
misrepresent or undermine the faith. See Redmond A. Burke, What is the
Index? (1952). (The Catholic Church suspended publication of the Index
Librorum Prohibitorum in 1966 but did not abolish the distinction between
moral and immoral literature.) Cases arising out of religious beliefs that
particular books should not be read include Mozert v. Hawkins County Board
of Education, 827 F.2d 1058, 1061-62 (6th Cir. 1987), and Smith v.
Mobile Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987).
See also Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972). Students not only read books that question or conflict with their
tenets but also write essays about them and take tests--questions for which
their teachers prescribe right answers, which the students must give if they are
to receive their degrees. The diversity of religious tenets in the United
States ensures that anything a school teaches will offend the scruples
and contradict the principles of some if not many persons. The problem
extends past government and literature to the domain of science; the religious
debate about heliocentric astronomy is over, but religious debates about geology
and evolution continue. An extension of the school-prayer cases could not
stop with the Pledge of Allegiance. It would extend to the books, essays,
tests, and discussions in every classroom.

A pupil who
takes exception to the prescribed curriculum of the public schools--whether the
textbooks or the class discussions or the civic ceremonies such as the Pledge of
Allegiance--is asserting a right to accommodation of his political or religious
beliefs. Humane government often calls for accommodation; programs such as
tuition vouchers serve this interest without offending other constitutional
norms. Witters v. Washington Department of Services for the Blind,
474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986). See also Michael W.
McConnell, The Selective Funding Problem: Abortions and Religious Schools,
104 Harv.L.Rev. 989 (1991). But see Zobrest v. Catalina Foothills
School District, 963 F.2d 1190 (9th Cir. 1992), cert. granted, _____ U.S.
_____, 113 S.Ct. 52, 121 L.Ed.2d 21 (1992). Government nonetheless retains
the right to set the curriculum in its own schools and insist that those who
cannot accept the result exercise their right under Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and select
private education at their own expense. The private market supports a
profusion of schools, many tailored to religious or cultural minorities, making
the majoritarian curriculum of the public schools less oppressive. We
agree with Judge Boggs that "school boards may set curricula bounded only
by the Establishment Clause" even though pupils may find the books and
classroom discourse offensive or immoral. Mozert, 827 F.2d at
1080 (concurring opinion). By remaining neutral on religious issues, the
state satisfies its duties under the free exercise clause. Employment
Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876
(1990). All that remains is Barnette itself, and so long as the
school does not compel pupils to espouse the content of the Pledge as their own
belief, it may carry on with patriotic exercises. Objection by the few
does not reduce to silence the many who want to pledge allegiance to
the flag "and to the Republic for which it stands".

IV

All of this
supposes that the Pledge is a secular rather than sectarian vow.
Everything would be different if it were a prayer or other sign of religious
devotion. Does "under God" make the Pledge a prayer, whose
recitation violates the establishment clause of the first amendment?

The
district court trudged through the three elements identified by the Court in Lemon,
concluding that the Pledge passes every test. Of course Lemon was
not devised to identify prayer smuggled into civic exercises, and its status as
a general-purpose tool for administering the establishment clause is in
doubt. Rumblings of discontent are frequent. The Court heard Lee
v. Weisman in large part to reconsider Lemon, and Lee
concluded without renewing Lemon's lease. The majority opinion
reserved decision on the future of Lemon. ______ U.S. at
______, 112 S.Ct. at 2655. Three members of the majority signed an opinion
employing Lemon, _____ U.S. at ____ __ _____, 112 S.Ct. at 2663-64 (Blackmun,
J., joined by Stevens & O'Connor, JJ.), but one member of this group has
expressed doubts. Aguilar v. Felton, 473 U.S. 402, 426-30, 105
S.Ct. 3232, 3245-47, 87 L.Ed.2d 290 (1985) (O'Connor, J., dissenting). The
author of the majority opinion in Lee has disparaged Lemon,
see Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (opinion of
Kennedy, J.). The fifth member of the majority in Lee wrote a
concurring opinion that did not rely on or endorse Lemon.
_____ U.S. at _____, 112 S.Ct. at 2667-78 (Souter, J.). And four Justices
proposed to jettison Lemon forthwith. _____ U.S. at _____, 112
S.Ct. at 2685 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White
& Thomas, JJ.). So we are not disposed to resolve this case by
parsing Lemon.

Our
approach is more direct. Must ceremonial references in civic life to a
deity be understood as prayer, or support for all monotheistic religions, to the
exclusion of atheists and those who worship multiple gods? You can't
understand a phrase such as "Congress shall make no law respecting an
establishment of religion" by syllogistic reasoning. Words take their
meaning from social as well as textual contexts, which is why "a page of
history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Unless we are to treat the founders of the United States as unable to understand
their handiwork (or, worse, hypocrites about it), we must ask whether those
present at the creation deemed ceremonial invocations of God as
"establishment." They did not. See Allegheny, 492
U.S. at 671-73, 109 S.Ct. at 3142-43 (opinion of Kennedy, J.).

James Madison, the
author of the first amendment, issued presidential proclamations of religious
fasting and thanksgiving.(1) Thomas Jefferson, who
refused on separationist grounds to issue thanksgiving proclamations,(2)
nonetheless signed treaties sending ministers to the Indians.(3)
The tradition of thanksgiving proclamations began with President Washington, who
presided over the constitutional convention.(4)
From the outset, witnesses in our courts have taken oaths on the Bible, and
sessions of court have opened with the cry "God save the United States and
this honorable Court." Jefferson's Declaration of Independence
contains multiple references to God (for example: "We hold these
truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness."). When Madison and Jefferson
wrote their famous declarations supporting separation of church and state, they
invoked the name of the Almighty in support.(5)

The Founders' tradition has
endured. Presidents still issue proclamations of thanksgiving.
Details such as the Pledge of Allegiance and the motto on the coinage testify to
its force. The Pledge tracks Lincoln's Gettysburg Address, which ends with
a wish "that this nation, under God, shall have a new birth of freedom and
that government of the people, by the people, for the people, shall not perish
from the earth." The second inaugural address of that great statesman
and poet concludes: "With malice toward none; with charity for all;
with firmness in the right, as God gives us to see the right, let us strive on
to finish the work we are in; to bind up the nation's wounds; to care for him
who shall have borne the battle, and for his widow, and his orphan--to do all
which may achieve and cherish a just and lasting peace among ourselves, and with
all nations." Pupils who study this address with care will find 14
references to God among its 699 words.

When it decided Engel v.
Vitale, the first of the school-prayer cases, the Court recognized this
tradition and distinguished ceremonial references to God from supplications for
divine assistance: "There is of course nothing in the decision
reached here that is inconsistent with the fact that school children and others
are officially encouraged to express love for our country by reciting historical
documents such as the Declaration of Independence which contain references to
the Deity or by singing officially espoused anthems which include the composer's
professions of faith in a Supreme Being, or with the fact that there are many
manifestations in our public life of belief in God. Such patriotic or
ceremonial occasions bear no true resemblance to the unquestioned religious
exercise that the State of New York has sponsored in this instance."
370 U.S. at 435 n. 21, 82 S.Ct. at 1269 n. 21. To the same effect see Schempp,
374 U.S. at 306-08, 83 S.Ct. at 1615-16 (Goldberg, J., joined by Harlan, J.,
concurring). Lynch v. Donnelly, 465 U.S. 668, 676, 104 S.Ct.
1355, 1361, 79 L.Ed.2d 604 (1984), includes the Pledge in a list of civic
exercises with religious connotations, which the Court implied are
permissible. See also id. at 693, 104 S.Ct. at 1369 (O'Connor,
J., concurring), expressing the view that Thanksgiving, "In God We
Trust" and similar "government acknowledgments of religion serve ...
the legitimate secular purposes of solemnizing public occasions ... and
encouraging the recognition of what is worthy of appreciation in society.
For that reason, and because of their history and ubiquity, [these] practices
are not understood as conveying approval of particular religious beliefs."

Justice Brennan, among
the most stalwart of separationists, expressed similar thoughts when concurring
in Schempp, 374 U.S. at 303-04, 83 S.Ct. at 1614:

[W]e have simply interwoven the motto [In
God We Trust] so deeply into the fabric of our civil polity that its present
use may well not present that type of involvement which the First Amendment
prohibits. This general principle might also serve to insulate the
various patriotic exercises and activities used in the public schools and
elsewhere which, whatever may have been their origins, no longer have a
religious purpose or meaning. The reference to divinity in the revised
pledge of allegiance, for example, may merely recognize the historical fact
that our Nation was believed to have been founded "under God."
Thus reciting the pledge may be no more of a religious exercise than the
reading aloud of Lincoln's Gettysburg Address, which contains an allusion to
the same historical fact.

By the time of Marsh v. Chambers,
463 U.S. 783, 818, 103 S.Ct. 3330, 3349, 77 L.Ed.2d 1019 (1983) (dissenting
opinion), Justice Brennan was equivocal: "I frankly do not know
what should be the proper disposition of features of our public life such as
'God save the United States and this Honorable Court,' 'In God We Trust,' 'One
Nation Under God,' and the like. I might well adhere to the view expressed
in Schempp that such mottoes are consistent with the Establishment
Clause, not because their import is de minimis, but because they have
lost any true religious significance." In Lynch, 465 U.S. at
716, 104 S.Ct. at 1382 (dissenting opinion), Justice Brennan concluded that
"the reference to God contained in the Pledge of Allegiance to the flag can
best be understood, in Dean Rostow's apt phrase, as a form of 'ceremonial
deism,' protected from Establishment Clause scrutiny chiefly because [it has]
lost through rote repetition any significant religious content."
(Footnote omitted.) This court adopted such an approach when observing in ACLU
v. St. Charles, 794 F.2d 265, 271 (7th Cir. 1986), that both "In God
We Trust" and Christmas trees are secular, having lost their original
religious significance. See also Allegheny, 492 U.S. at 616, 109
S.Ct. at 3113 (opinion of Blackmun, J.).

An outcry in dissent
that one or another holding logically jeopardizes the survival of this tradition
always provokes assurance that the majority opinion carries no such
portent. Engel was the first of these, and Allegheny,
492 U.S. at 602-03, 109 S.Ct. at 3106, the most recent: "Our previous
opinions have considered in dicta the motto and the pledge, characterizing them
as consistent with the proposition that the government may not communicate an
endorsement of religious belief .... We need not return to the subject of
'ceremonial deism,' ... because there is an obvious distinction between creche
displays and references to God in the motto and the pledge."
Plaintiffs observe that the Court sometimes changes its tune when it confronts a
subject directly. True enough, but an inferior court had best respect what
the majority says rather than read between the lines. If the Court
proclaims that a practice is consistent with the establishment clause, we take
its assurances seriously. If the Justices are just pulling our leg, let
them say so.

The judgment of the
district court with respect to the Attorney General of Illinois is vacated, and
that portion of the case is remanded with instructions to dismiss for want of
jurisdiction. In all other respects the judgment is affirmed.

MANION, Circuit Judge,
concurring.

I concur with the
court's fine opinion and conclusion that reciting the Pledge of Allegiance does
not offend the establishment clause. I write separately to emphasize that
we need not totally denude the Pledge by reducing its language to the lowest
common denominator of "ceremonial deism" as favored by Justice
Brennan. A civic reference to God does not become permissible under the
First Amendment only when it has been repeated so often that it is sapped of
religious significance. Such an approach implies that phrases like
"in God we trust" or "under God", when initially used on
American coinage or in the Pledge of Allegiance, violated the establishment
clause because they had not yet been rendered meaningless by repetitive
use. As this court shows, the Founders demonstrate by their behavior that
the First Amendment was not intended to prohibit states from sanctioning
ceremonial invocations of God. Such state action simply does not amount to
an establishment of religion.

Another problem with the
concept of "ceremonial deism" is that it selects only religious
phrases as losing their significance through rote repetition. Why only
"under God"? Why not "indivisible", "liberty and
justice for all"? Do not these equally repeated phrases also lose
their meaning under the logic of "ceremonial deism"? The
answer, quite simply, is that a court cannot deem any words to lose their
meaning over the passage of time. Each term used in public ceremony has
the meaning intended by the term.

There is a significant
difference in a result which strikes down the Pledge as an endorsement of
religion, and one which leaves the Pledge intact, accompanied by the official
pronouncement that it is meaningless. While under the first alternative
the Pledge is prohibited from civic functions, under the second alternative the
Pledge is allowed, and people are free to ignore the pronouncement of this
court, and recite the Pledge with any degree of meaning they desire.

There is no need,
however, to apply either alternative. The Pledge of Allegiance with
all of its intended meaning does not effectuate an establishment of
religion. If legislative prayer based upon the Judeo-Christian tradition
is permissible under Marsh v. Chambers,
463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and a Christmas nativity
scene erected by a city government is permissible under Lynch
v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), then
certainly the less specific reference to God in the Pledge of Allegiance cannot
amount to an establishment of religion. We need not drain the meaning from
the reference to reach this conclusion.

2.
See his letter to Rev. Samuel Miller, in 5 The Founders' Constitution
98-99.

3.
The treaties are collected in Robert L. Cord, Separation of Church and
State: Historical Fact and Current Fiction 261-70 (1982).

4.
E.g., the Proclamation of October 3, 1789, which begins: "Whereas it
is the duty of all nations to acknowledge the providence of Almighty God, to
obey His will, to be grateful for His benefits, and humbly to implore His
protection and favor" and then sets Thursday,
November 26, 1789, as a day "to be devoted ... to the service of that
great and glorious Being who is the beneficent author of all the good that was,
that is, or that will be; that we may then all unite in rendering unto Him our
sincere and humble thanks for His kind care", and much more in the same
vein. 5 The Founders' Constitution 94. Washington
issued this proclamation on the joint recommendation of both Houses of Congress,
ibid., which only days before (on September 25) had sent the text of
the establishment clause to the states for ratification.

5.
Here is the preamble to Virginia's Act for Establishing Religious Freedom, which
Jefferson drafted in 1779 (and the state enacted in 1785): "Well
aware that the opinions and belief of men depend not on their own will, but
follow involuntarily the evidence proposed to their minds, that Almighty God
hath created the mind free, and manifested his Supreme will that free it shall
remain, by making it altogether insusceptible of restraint: That all
attempts to influence it by temporal punishments or burthens, or by civil
incapacitations, tend only to beget habits of hypocrisy and meanness, and are a
departure from the plan of the holy author of our religion, who being Lord both
of body and mind, yet chose not to propagate it by coercions on either, as was
in his Almighty power to do, but to extend it by its influence on reason
along". 5 The Founders' Constitution 77.

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